Delhi District Court
Master Dhruv Kant Bhardwaj vs Sh. Lakhpat Singh Sharma on 27 July, 2012
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE III, ROHINI COURTS: DELHI
Suit No. 344/11
1. Master Dhruv Kant Bhardwaj,
S/o Sh. Surya Kant Sharma, Minor
2. Km. Isha Bhardwaj,
D/o Sh. Surya Kant Sharma, Minor
Both Through Their Mother,
Legal Guardian
Ms. Neelam Kanta Sharma
W/o Sh. Surya Kant Sharma
3. Ms. Neelam Kanta Sharma
W/o Sh. Surya Kant Sharma
All R/o G5/47, Sector11,
Rohini, Delhi110085
............Plaintiffs
Versus
1. Sh. Lakhpat Singh Sharma
S/o Sh. Kishori Lal
R/o H.No. 159, Ishwar Colony,
Bawana, Delhi
Suit No. 344/11 Page 1 of 19
2. Sh. Surya Kant Sharma
S/o Sh. Lakhpat Singh Sharma
R/o H.No. 159, Ishwar Colony,
Bawana Delhi.
.......Defendants
Suit filed on : 16.03.2011
Judgment on : 27.07.2012
JUDGMENT
1. plaintiffs have filed the present suit for partition, maintenance and rendition of accounts praying for a decree of partition in respect of properties bearing No. 159, Ishwar Colony, Bawana, Delhi, property situated at Indraj Colony, Bawana, Delhi and property bearing No. G5/47, Sector11, Rohini, Delhi and a decree for rendition of accounts in their favour and against the defendants in respect of property sold by defendants at village Khelawan, Tehsil Shikharpur, District Bulandshehar, U.P. besides a house and tubewell at Village Khelawan, Tehsil Shikharpur, District Bulandshehar, U.P. Suit No. 344/11 Page 2 of 19 Plaintiffs have also prayed for a decree of maintenance to the tune of Rs. 20,000/ per month in their favour and against the defendant. Suit of plaintiffs is that plaintiff no.3 was married to defendant no.2 on 02.12.96 in accordance with Hindu rites and rituals and started living with her husband in the family house at 159, Ishwar Colony, Bawana, Delhi. Plaintiffs no. 1 & 2 were born out of the wedlock. For the reason best known to defendants the plaintiffs along with defendant no.2 shifted to a rented accommodation at Village Shabad, Daulatpur, Delhi and stayed there from 25.06.98 to 24.02.2001 and thereafter they shifted their residence to G5/37, Sector11, Rohini where they resided till 25.02.2002 as the property bearing No. G5/47, Sector11, Rohini Delhi owned by the joint family of defendants was under
construction. On the completion of property bearing No. G5/47, Sector11, Rohini Delhi the plaintiffs and defendant no.2 started living there. Defendant no.2 deserted the plaintiffs on 18.03.2004 and refused to maintain them and started living with his parents at 159, Ishwar Colony, Suit No. 344/11 Page 3 of 19 Bawana, Delhi. The plaintiffs have also given the details regarding the harassment, humiliation and torture faced by plaintiff no.3 as a result of which FIR bearing No. 742/2004 P.S. Prashat Vihar, U/s 498A, 406/34 IPC was registered against the defendants. The plaint also discloses lodging of allegedly false complaint against plaintif no.3, her father and the tenant in occupation of the ground and second floor of the property No. G5/47, Sector11, Rohini, Delhi and thus lodging of FIR U/s 380/448 IPC vide FIR No. 896/2005 and FIR No. 169/2007 U/s 380/448/420/34 IPC by the defendants. The plaint also discloses about the filing of petition U/s 125 Cr.P.C against defendants by plaintiff and the petition U/s 12 of Hindu Adoption and Maintenance Act by defendant no.2 against plaintiffs as an interim relief of visitation rights against the plaintiff no.3. The plaint also discloses filing of suit for possession bearing No. 153/2006 in respect of first floor portion of property bearing No. G5/47, Sector11, Rohini Delhi by defendant no.1 against the plaintiffs and filing of petition U/s 13(1) (ia) of Hindu Suit No. 344/11 Page 4 of 19 Marriage Act by defendant no.2 against plaintiff no.3. It is stated that the defendants are the joint owners of property No. G5/47, Sector11, Rohini, Delhi and the property at Village khelawan, Tehsil Shikharpur, District Bulandshehar, U.P. and the property at Indraj Colony, Bawana, Delhi are the ancestral properties owned by defendants in which the plaintiffs being the members of Hindu joint family/ coparceners are entitled to partition of the said properties. They are also entitled to seek rendition of accounts in respect of property at Village khelawan, Tehsil Shikharpur, District Bulandshehar, U.P and the house and tube well which was sold by the defendants. Hence the present suit.
2. Suit of the plaintiffs has been contested by both the defendants. Defendant no.1 in his WS has taken preliminary objection that the plaintiffs have no locus standi to file the present suit and that he had already made a complaint against plaintiff no.3 and her associates regarding grabbing of her property bearing No. G5/47, Sector11, Rohini on which FIR bearing No. 169/2007 U/s 448,380/420 IPC was Suit No. 344/11 Page 5 of 19 registered against plaintiff no.3 and her associates and he has also filed the suit for possession in respect of the first floor of house No. G5/47, Sector11, Rohini Delhi against plaintiff no.3 and as a counter blast to the same the plaintiffs have filed the present suit. Objection has also been taken that the suit has not been properly valued for the purpose of court fees and jurisdiction and is without any cause of action.
On merits, the pendency of various litigations between the parties is not disputed and the allegations against the defendants have been denied. It is denied that defendant no. 2 had started living with his family in 159, Ishwar Colony as alleged and submitted that defendant no.1 had debarred defendant no.2 from inheriting any share in his property movable as well as immovable vide public notice dated 14.09.2005 published in 'Veer Arjun' newspaper because of his noncooperative and anti family activities. The allegations of harassment and torture of plaintiff no.3 by defendant no.1 and other family members has been categorically denied and averred that instead of vacating the property bearing Suit No. 344/11 Page 6 of 19 No. G5/47, plaintiff no.3 in connivance with defendant no.2 with malafide intention and ulterior motive to grab the said property lodged false report against defendant no.1 and his family members at the concerned police station implicating them U/s 498A/406 IPC knowing fully that defendant no.1 and his family members had no connection with plaintiffs and defendant no.2 since 25.06.98 nor there was any interference on their part in the family affairs of plaintiff no.3. It is averred that defendant no.1 and his family members had no liability to maintain the plaintiffs. It is further stated that plaintiff no.3 knowing fully well that she was neither the owner nor the land lady of flat No. G5/47, Sector11, Rohini, let out the ground and second floor portions of suit property for which defendant no.1 had also made the complaint against her vide FIR No. 896/2005 U/s 380, 448 IPC. It is denied that at the time of marriage of defendant no.2 it was represented or given to understand that defendant no.2 is a member of HUF. It is submitted that the property as well as residential house at Village Khelawan, Distt. Bulandshehar, Suit No. 344/11 Page 7 of 19 U.P. was owned by defendant no.1 and his brother and as the brother of defendant no.1 died, his share was inherited by his Lrs. The said entire property was sold by defendant no.1 and son of his brother for Rs. 10,56,000/ and the amount which came in the share of defendant no.1 was equally distributed amongst the son and daughter of defendant no.1 namely Suryakant, Vinod and Rekha Sharma. It is also categorically denied that plaintiff no.3 and her family members were made to understand that property no. 159, Ishwar Colony, Bawana or property at Indraj Colony, Bawana were purchased out of the funds of the ancestral property as alleged. It is denied that property No. 159, Ishwar Colony or property at Indraj Colony, Bawana were purchased out of the funds of ancestral property and asserted that property No. 159, Ishwar Colony, Bawana is the self owned property which was purchased in the name of wife of defendant no.1 in the year 1973 and at that time, defendant no.2 was minor and a school going child. At present, defendant no.1 along with his family members was Suit No. 344/11 Page 8 of 19 residing at house No. 159, Ishwar Colony, Bawana and further the property at Indraj Colony, Bawana is also the self owned property which was purchased by defendant no.1 in the year 2008 after disposal of his property situated at Maujpur, Delhi which was also owned by defendant no.1 and at present the tenants of defendant no.1 were living in the said property. It is also denied that defendant no.2 is joint owner of property No. G5/47, Sector11, Rohini and submitted that the said property was purchased by defendant no.1 from his own retirement funds and was constructed by him from his own funds and as such defendant no.2 had no right, title or interest over the suit property. It has been categorically denied that there existed HUF or the plaintiffs are the coparceners of the same as alleged. It has therefore been prayed to dismiss the suit of the plaintiffs.
3. Defendant no.2 also filed the separate WS wherein he admitted that he was not the owner of the properties claimed by the plaintiffs. Defendant no.2 also took the preliminary Suit No. 344/11 Page 9 of 19 objection regarding locus standi of plaintiffs and suit being without cause of action. On merits also, defendant no.2 has mainly supported the case of defendant no.1 and submitted that due to cruelty of plaintiff no.3, defendant no.1 had debarred defendant no.2 from inheriting any share in his property by public notice.
4. In the replication, the plaintiffs have mainly reiterated and reaffirmed the contents of the plaint and controverted the averments made in the WS.
5. On the pleadings of the parties following issues were framed for consideration on 30.07.2011:
i)Whether the plaintiffs have no locus standi to file the present suit against defendant no.1?OPD
ii)Whether the suit has not been property valued for the purpose of court fees and jurisdiction ?OPP
iii)Whether the plaint is liable to be rejected for want of cause of action U/o 7 Rule 11 CPC?OPP
iv)Whether the suit of the plaintiff is bad for nonjoinder of parties, if so its effect ?OPD Suit No. 344/11 Page 10 of 19
v)Whether the plaintiffs are entitled to decree of partition in respect of suit properties ?OPP
vi) Whether the plaintiffs are entitled for rendition of accounts as prayed?OPP
vii) Whether the plaintiffs are entitled for decree of maintenance, if so at what rate and against which defendant?OPP
viii) Relief.
6. In order to establish their claim, the plaintiffs have filed evidence by way of affidavit which has been tendered as Ex. PW1/A. On the other hand, defendant no.1 has filed his affidavit in evidence which is Ex. PW1/1.
7. I have thoroughly gone through the testimony of witnesses and perused the record. I have also given the thoughtful consideration to arguments addressed by ld. Counsel for the parties. My findings on various issues are as under: Finding on Issue No.4
8. The plaintiff in her crossexamination has admitted that the property bearing No. 159, Ishwar Colony, Bawana, Delhi is Suit No. 344/11 Page 11 of 19 in the name of her motherinlaw and she is the owner of the said property. The plaintiff by way of present suit has also prayed for partition of property No. 159, Ishwar Colony, Bawana. She however has not impleaded her mother in law as a party to the suit who being the registered owner of the property is a necessary party. Accordingly, the suit is bad for nonjoinder of necessary parties and in view of proviso to Order 1 Rule 9 CPC, the suit is liable to be dismissed so far as the relief in respect of property bearing No. 159, Ishwar Colony, Bawana is concerned. Issue no.4 is thus decided in favour of defendants and against the plaintiffs.
Finding on Issue No.2
9. The plaintiff has valued the suit for the purpose of court fees and jurisdiction for the relief of partition of suit properties @ Rs. 17,50,000/ and for the purpose of rendition of account it has been valued @ 200/ and for the purpose of maintenance, it is valued @ Rs. 20,000/ on which the requisite court fees has been annexed. The onus to prove the present issue had been placed on the defendants. Defendant no.1 has placed on record Suit No. 344/11 Page 12 of 19 the title documents with regard to property No. 47, Pocket5, measuring 48 sq. yds, Sector11, Rohini for a value of Rs. 1,05,000/ which are Ex. DW1/C to Ex. DW1/G. Defendants have not adduced any evidence to prove the market value of the properties sought to be partitioned. Thus they have failed to establish that the suit has been under valued for the purpose of court fees and jurisdiction. Accordingly issue no.2 is decided in favour of plaintiffs and against the defendants. Finding on Issues No.1,3 & 5
10. The plaintiffs though have claimed themselves to be the members of joint Hindu family, they however have failed to produce any evidence to establish their claim. The claim of plaintiffs for the relief of partition is in respect of properties no. G5/47, Sector11, Rohini, House No. 159, Ishwar Colony, Bawana, property at Indraj Colony, Bawana and property at village Khelawan, Tehsil Shikharpur, Distt. Bulandshehar, U.P. In respect of property No. G5/47, Sector11, Rohini, the claim of the plaintiffs is that both the defendants are the joint owners of the said property whereas from the documents Ex. PW1/C to Suit No. 344/11 Page 13 of 19 PW1/G, it is established that the said property is exclusively in the name of defendant no.1 by way of conveyance deed and other documents. Thus, the plaintiffs have no locus standi and no cause of action to ask for any share in the said property. Further, their stand with regard to property no.159, Ishwar Colony, Bawana and Indraj Colony, Bawana is that they are the ancestral properties owned by defendants. PW1 however in her crossexamination admitted that the property bearing No. 159, Ishwar Colony, Bawana was in the name of her mother in law and she is the owner of the property and the property of Indraj Colony, Bawana Delhi was in name of her father in law and he is the owner of the same. She also admitted that property No. 159, Ishwar Colony, Bawana was purchased and constructed before her marriage. Though she testified that she was made to understand that the said properties were purchased out of the funds of ancestral properties, however she could not establish the same or that the said properties were purchased out of the funds of ancestral properties. DW1 has deposed that he had purchased the property at Indraj Colony after selling away his Suit No. 344/11 Page 14 of 19 property at Maujpur in the year 2008. There is also no cross examination of DW1 on the said averment. He has also placed on record the title documents in respect of the said property in his favour which are Ex. DW1/M to Ex. DW1/R. Copy of sale deed in respect of property bearing no. 159, Ishwar Colony in the name of Smt. Kusum Lata wife of defendant no. 1 is Ex. DW1/L. DW1 further deposed that there existed no HUF and as such question of defendant no. 2 being the member of HUF never arose at any point of time. He further testified that the property as well as residential house at village Khelawan District UP, Bulandsahar was owned by him as well as his brother jointly. As his brother had died, the same was inherited by his legal heirs. Since the property at village Khelawan was useless property and there was nobody to look after the same. It was decided by him and legal heirs of his deceased brother to dispose off said property and thereafter the entire property was sold by him and the legal heirs of his deceased brother for Rs. 10.56,000/ and the amount which came in his share was equally distributed amongst his sons and daughters. Copy of Suit No. 344/11 Page 15 of 19 the receipt dt. 8.9.2004 executed by defendant no. 2 is Ex. DW1/K. Ld. Counsel for plaintiff has argued that the plaintiff had issued a notice U/o 12 R 8 CPC Ex. DW1/D1 to the defendant for production of title documents of various properties including the copy of revenue record of property situated at Village Khelawan, Distt. Bulandshehar, U.P. but despite of service of the notice, the defendants did not produce the documents pertaining to the property at village Khelawan. He further argued that the nonproduction of the revenue records of property at village by the defendants leads to an adverse inference against them. The stand of the defendants on the other hand is that the property in Khelawan was the joint property of defendant no.1 and his brother and after the death of his brother, in 2004, the defendant no.1 and LRs of his brother had sold away the said property since it was lying useless and the sale proceeds of the share of defendant no.1 were equally distributed amongst his sons and daughters. After the sale of the property, defendant no.1 is not supposed to be in possession of the title documents of the same. Even otherwise Suit No. 344/11 Page 16 of 19 the burden to establish that the said property was ancestral property is on the plaintiff. In view of the stand taken by defendants, the plaintiffs could have summoned the revenue record of the property at Village Khelawan, Bulandshehar, U.P which allegedly was ancestral property to establish her claim. Since the plaintiff has failed to discharge the initial burden of proving that property in village Khelawan was ancestral property, the burden to establish that the same was not ancestral property had never shifted on the defendants. Further, the plaintiff also failed to establish that the property at Ishwar Colony, Bawana was purchased out of the sale proceeds of property at village Khelawan. From Ex. PW1/L it is revealed that property at Ishwar Colony, Bawana was purchased in 1973 in the name of Smt. Kusum Lata and admittedly at that time, defendant no.2 was minor. Further, the property at Indraj Colony, Bawana though was purchased in 2008, since the explanation given by DW1 that the same was purchased after disposal of his property situated at Maujpur, Delhi has not been disputed, it can not be inferred that the same was purchased out Suit No. 344/11 Page 17 of 19 of the sale proceeds of property sold at village Khelavan. In view of the above discussion, the plaintiffs have failed to establish their locus standi and cause of action against defendants for the relief of partition and rendition of accounts against the defendants. Accordingly issues No.1,3 & 5 are decided against the plaintiffs and in favour of the defendants. Finding on Issue No.6
11. As discussed in the earlier issues, since the plaintiff has failed to discharge the burden of proving that the property at Village Khelawan was the ancestral property, they are not entitled to decree of rendition of accounts in respect of the said property as prayed. Issue no.6 is decided against the plaintiffs and in favour of the defendants.
Finding on issue No.7
12. At the outset the plaintiffs have no right to claim maintenance from defendant no.1 during the lifetime of defendant no.2 i.e the husband of plaintiff no.3 and father of plaintiff no.1 &
2. The plaintiffs have also not adduced any evidence with regard to the income of defendant no.2. Though legally they are entitled Suit No. 344/11 Page 18 of 19 to claim maintenance from defendant no.2 if they are not in a position to maintain themselves, since no evidence has been adduced with regard to their inability to maintain themselves and the income of defendant no.2, no order with regard to maintenance can be passed in their favour. Even otherwise, PW1 has specified that she has also filed a petition U/s 125 of Cr.P.C against defendant no.2. This leads to an inference that plaintiffs are already getting maintenance from the defendant no.2. Ld counsel for plaintiffs has also not at all argued or pressed for the relief of maintenance. Thus it appears that the plaintiffs are not interested for the said relief. Issue no.7 is also decided against plaintiffs and in favour of defendants for want of evidence. Relief.
13. In view of my findings on aforesaid issues, suit of the plaintiffs is dismissed. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 27.07.2012 ADDL. DISTRICT JUDGE:III
ROHINI COURTS: DELHI
Suit No. 344/11 Page 19 of 19
Suit No. 344/11
24.07.2012
Present: None.
Orders partly dictated.
Put up for remaining orders on 27.07.2012.
(SUKHVINDER KAUR)
ADDL. DISTRICT JUDGE:III
ROHINI COURTS: DELHI.
27.07.2012
Present: None.
Vide separate judgment, suit of the plaintiffs is dismissed. File be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI.
Suit No. 344/11 Page 20 of 19